6 Feb 2024 6:02 AM GMT
The Supreme Court recently upheld the conviction in a murder case observing that the ocular evidence given by the eye witness can't be discredited merely because the expert opinion supplied by the doctor suggests the use of different weapons in causing injuries.
Setting aside the concurrent findings of the High Court and Trial Court, the Bench of Justices Abhay S. Oka and Pankaj Mithal, observed that when the ocular piece of evidence is available to sufficiently prove the guilt of the accused, then the conviction can not be set aside just because the expert evidence of the doctor suggests otherwise.
It was contended by the accused that the conviction could be set aside because the doctor had suggested the possibility of using some different weapons in causing the injuries but not the chopper.
Disagreeing with the contention made by the prosecution, the court observed that the expert's mere suggestion of a probability cannot discredit the witness as the said doctor herself in the end had suggested that all the wounds could have been caused by the chopper.
"The second contention advanced on behalf of the appellants that the medical evidence or the medical report on record does not substantiate the stand taken by the prosecution has no merit at all for the simple reason that the doctor (PW-18) who conducted the postmortem had proved the injuries. However, she suggested the possibility of use of different weapons in causing those injuries. Undoubtedly, only one kind of weapon i.e. chopper was used in committing the crime and, therefore, the evidence of the doctor may not be matching with that of the prosecution, but again, the ocular evidence of PW-3 and PW-4 is sufficient enough to prove that only chopper was used as a weapon of crime."
Briefly put, the trial court has convicted three accused i.e., appellants in the present case for offences punishable under Sections 302 and 149 read with Section 34 of Indian Penal Code. The allegations levied against the appellants were that they along with other persons gathered outside the deceased house and formed an unlawful assembly by assaulting the deceased and her family members with a chopper. The deceased succumbed to death while other members suffered were grievously injured.
The conviction was also affirmed by the High Court. Against the High Court's judgment affirming the conviction, the appellants preferred the instant criminal appeal before the Supreme Court.
Unlawfully Assembling Armed with Deadly Weapns Attract Section 149 IPC
The Court noted that all the accused persons unlawfully assembled in front of the house of the deceased Shivanna and armed themselves with deadly weapons attracting the provisions of Section 149 IPC.
“There is a clear evidence of PW-3 and PW-4 that, in the first instance, a day earlier, a threat was extended to them and then in a planned manner on the next morning initially A-8 and A-9 had come and stood near their house. Thereafter, the other accused came in an autorickshaw and after alighting from it collected weapons from behind the board of a tailor shop and assembled in front of their house. They together armed with weapons (choppers), entered their house and A-8 and A-9 stood on the door of the house instigating others to kill. This evidence is sufficient in itself to establish that they had assembled in front of the house of the deceased Shivanna sharing a common intention of doing an unlawful act of eliminating the family of the deceased Shivanna.”
“A plain reading of the above provision abundantly makes clear that an overt act of some of the accused persons of an unlawful assembly with the common object to kill the deceased Shivanna and to cause grievous hurt to the other family members is enough to rope in all of them for an offence under Section 302 IPC in aid with Section 149 IPC.”, the court observed.
In Absence of Other Eye Witness, the Testimony of the Interest Witness Can Be Relied Upon
The court observed that the testimony of the two-prosecution witness i.e., deceased wife and daughter, cannot be discarded merely because they are interested witnesses as they form the best piece of evidence.
“PW-3 and PW-4 are the eyewitnesses who were present at the scene of incident and were grievously injured. On being assaulted, they became unconscious and gained consciousness only on reaching hospital. Their testimony in the background of the case is the best evidence. No doubt, they are members of the family and may be interested persons but their testimony cannot be discarded simply for the reason that they are family members in the scenario of the case that the incident took place inside the house of the deceased Shivanna, where there could not have been any other eyewitnesses other than the family members. The evidence of the aforesaid two eyewitnesses could not be shaken in the cross-examination. Thus, we do not find any illegality on part of the courts below in holding the appellants guilty and to convict them.”
Doctor's Probable Opinion Can't Discredit the Eye Witness Testimony
The court further rejected the contention advanced on behalf of the appellants that the medical evidence or the medical report on record does not substantiate the stand taken by the prosecution. According to court, the contention advanced by the appellants has no merit at all for the simple reason that the doctor who conducted the post-mortem had proved the injuries.
“Undoubtedly, only one kind of weapon i.e. chopper was used in committing the crime and, therefore, the evidence of the doctor may not be matching with that of the prosecution, but again, the ocular evidence of PW-3 and PW-4 is sufficient enough to prove that only chopper was used as a weapon of crime. In the light of the said evidence of the two eyewitnesses, the suggestion or opinion of the doctor cannot prevail as the opinion based upon probability is a weak evidence in comparison to the ocular evidence of eyewitnesses. Moreover, even the said doctor herself in the end had suggested that all the wounds could have been caused by the same kind of weapons. Therefore, this submission also lacks merit”.
Accordingly, the court dismissed the criminal appeal preferred by the appellants accused by noting that no error has been committed by the courts below to sustain the conviction of the appellants accused.
“In the case at hand, no perversity of any kind has been pointed out in the findings returned by the two courts below. We are ourselves satisfied upon consideration of the entire material evidence on record that none of the findings are in any manner perverse, thus, leaving no scope for this Court to disturb the findings or the judgments and orders of the courts below.”
Head Notes:
Section 149 Indian Penal Code. 1860: If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence-A plain reading of the provision abundantly makes clear that an overt act of some of the accused persons of an unlawful assembly with the common object to kill the deceased Shivanna and to cause grievous hurt to the other family members is enough to rope in all of them for an offence under Section 302 IPC in aid with Section 149 IPC. (para 20)
Evidence Law : On Ocular Evidence - No doubt, they are members of the family and may be interested persons but their testimony cannot be discarded simply for the reason that they are family members in the scenario of the case that the incident took place inside the house of the deceased Shivanna, where there could not have been any other eyewitnesses other than the family members. The evidence of the aforesaid two eyewitnesses could not be shaken in the cross-examination. (para 16)
Evidence Law: Ocular evidence is sufficient to prove the guilt of the accused even if it unmatches with the doctor's expert evidence-Undoubtedly, only one kind of weapon i.e. chopper was used in committing the crime and, therefore, the evidence of the doctor may not be matching with that of the prosecution, but again, the ocular evidence of PW-3 and PW-4 is sufficient enough to prove that only chopper was used as a weapon of crime. In the light of the said evidence of the two eyewitnesses, the suggestion or opinion of the doctor cannot prevail as the opinion based upon probability is a weak evidence in comparison to the ocular evidence of eyewitnesses. (para 21)
For Appellant(s) Mr. Tripurari Ray, Adv. Mr. Anirudh Ray, Adv. Mr. Hemant Kumar Sagar, Adv. Mr. E.C. Vidya Sagar, AOR
For Respondent(s) Mr. Muhammad Ali Khan, A.A.G. Mr. V.N. Raghupathy, AOR Mr. Manendra Pal Gupta, Adv. Mr. Omar Hoda, Adv. Ms. Easha Bakshi, Adv. Mr. Uday Bhatia, Adv. Mr. Kamran Khan, Adv.
Case Details:
HAALESH @ HALESHI @ KURUBARA HALESHI VERSUS STATE OF KARNATAKA
CRIMINAL APPEAL NO.1954 OF 2012
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